Real Estate 401 – The Option Period

The following article is not intended to provide legal opinions or advice, but only to educate buyers about the real estate buying process. You should always consult a lawyer before entering into a legally binding contract.

In Texas, the Termination Option, or the option period as it is typically referred to, provides buyers with an unrestricted right to terminate a contract to purchase property, for a specified fee within a specified number of days after the contract is signed by all parties. In layman's terms, the buyer has the right to say, "No thanks, I decided I don't want to buy your house after all." Since this is an unrestricted right, there need not be a reason for terminating or cancelling the contract. The buyer does pay for this unrestricted right to terminate. Some of the more typical amounts I see are in the $50 - $75 range, but I have seen both larger and smaller amounts. The fee can be credited to the buyer or seller at closing, generally buyers are usually credited with the fee if the sale is completed but it is a negotiable item. The length of the option period, in days, is also negotiable but typical option periods are in the 5-10 day length.

Sellers are motivated to keep the option period as short as possible, since they are basically taking their home off the market and can have the contract to purchase their house terminated for no reason at all. In this case they receive only the option fee, which is a comparatively tiny amount. Buyers do occasionally use the option period as a cure for buyer's remorse – the typical second guessing that buyers have after making a big purchase of any kind, but this is unusual in my experience. The option period is designed to be used as a time for buyers to have home, pest, septic and other inspections done and then renegotiate the price or negotiate for repairs if necessary. In this regard, a 5 day period is attractive for a seller but during a busy season, it can be difficult to get all inspections done and have time to negotiate before the option expires.

When the option period expires, if the seller and buyer have not agreed on specific repairs or price reductions, the buyer is agreeing to buy the house "as is", as long as any repairs originally specified in the contract are completed prior to closing. Negotiating during the option period is done via a form called the Amendment to Contract. Repairs and price reductions are written in the proper spaces on the form and then negotiation commences per the manner described in the previous article: Real Estate 301. Often, the negotiation is done verbally between the agents and then the agreed upon terms are written in on this form and signed by both parties. Often when terms are agreed upon, the seller will ask the buyer to waive any remaining option to terminate, this is also done via the Amendment to Contract. This is to prevent the buyer from coming back asking for further repairs or reductions after an agreement has been reached.

Sellers are advised to refrain from making any repairs specified by either the original contract or the Amendment until after the option period is over. Unless of course, the seller intends to complete the repairs even if the buyer were to opt out, or terminate the contract. A seller might complete all requested repairs only to have the buyer terminate the contract afterward. This is another reason sellers often ask buyers to waive the option to terminate.

The Amendment to Contract also contains places to extend the option period if necessary to complete negotions or inspections. Once the option period is over, agents and sellers (and buyers) can breathe a big sigh of relief. It is one of the last big hurdles that must be cleared on the way to closing. There are reasons that could result in the property not closing, and plenty of things that must happen to ensure that the closing will occur but most of the uphill work is usually over after the option expires. Check back later for the next article in the series – Closing the Real Estate Transaction.